Court reviews guilty plea discounts

Appeal of 10-year drug sentence dismissed

Stephen Edward Whittaker lost his appeal against a sentence of 10 years for attempting to export cocaine, but the Cayman Islands Court of Appeal took the opportunity to review the level of discounts given to defendants who plead guilty.

Whittaker’s case was one of 18 criminal matters scheduled for the court session that began on 19 March and concluded on 5 April.

Attorney John Meghoo argued that 12 years was too high a starting point for determining Whittaker’s sentence, while a discount of two years for his guilty plea was too low.

Deputy Director of Public Prosecutions Trevor Ward reminded the court of a United Kingdom authority. He said for the level of sentence reduction to be determined, an important factor is the stage of proceedings at which the accused enters his plea.

One-third discount may be appropriate when the plea is indicated at the first reasonable opportunity. One-fourth discount maybe expected when the plea is before a trial date is set. One-tenth discount may be appropriate “at the door of the court” – that is, when the trial is scheduled to start – or after the trial has already begun. Where the evidence is overwhelming, no discount at all need be given, Mr. Ward summarised.

Whittaker, now 29, was charged after a suspicious package at the airport led officers to question him in November 2006; a search of his person revealed a package wrapped around his leg with a bandage. Total weight of the cocaine involved was 395 grams or 13.9 ounces.

Sentencing guidelines call for a tariff of 10 to 12 years for trafficking offences involving two or more ounces.

Mr. Meghoo submitted that this guideline was before any mitigation. He suggested that the sentencing starting point could be 10 years, with two years off for the guilty plea. He pointed out that the chief justice had said there would be substantial discount for offenders who were prepared to cooperate.

Justice Abdullah Conteh asked what Whittaker’s cooperation was. “He did not seek to deceive them or beat around the bush. He was humble and contrite,” Mr. Meghoo replied.

Court president Sir John Chadwick suggested that Whittaker’s scope for cooperation was a bit limited, since he was apprehended with the cocaine strapped around his leg. Typical cooperation, he suggested, would be information from a courier leading to a supplier.

Whittaker’s explanation for having the cocaine was that he had found it. Because of financial difficulties with his business and the need to care for his sick child, he had decided to distribute the cocaine, but not locally, attorney John Furniss told Chief Magistrate Margaret Ramsay-Hale at the sentencing hearing.

The magistrate replied, “Good character is of no moment. A sick child is of no moment.” Otherwise, she indicated, drug movers would all be people with sick children (Caymanian compass, 4 February 2011).

In the Court of Appeal, another aspect of Whittaker’s case was the date on which he entered his plea. He was successful in getting bail a month after his first court appearance and he entered a not guilty plea in April 2007, Mr. Ward pointed out. There were various reasons for his trial being delayed, including change of attorneys.

In 2010, Whittaker and others went out in a fishing vessel and drifted to Jamaica after engine trouble. He subsequently returned to Cayman and on 16 December that year pleaded guilty.

The Summary Court sentence of 12 years was appealed to Grand Court. In October 2011, Justice Richard Williams reduced the sentence to 10 years, saying justice would be best served with the discount. If Whittaker had entered his plea earlier, his sentence would have been reduced further, but the plea did not come until four years after the offence.

Justice Chadwick, with the assent of Justice Conteh and Justice Anthony Campbell, said the Court of Appeal saw no basis for interfering and refused Whittaker’s application for leave to appeal out of time.

The reduction in sentence from 12 years to 10 was a discount of 16.5 per cent or about one-sixth.